Citation Nr: 1017949
Decision Date: 05/14/10 Archive Date: 05/26/10
DOCKET NO. 07-13 277 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Waco, Texas
THE ISSUES
1. Entitlement to service connection for a right foot
disability.
2. Entitlement to service connection for a left foot
disability.
3. Entitlement to service connection for an acquired
psychiatric disorder to include anxiety with depression
and/or posttraumatic stress disorder (PTSD) based on personal
assault.
4. Entitlement to service connection for a low back
disability.
REPRESENTATION
Veteran represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
C. Kedem, Counsel
INTRODUCTION
The Veteran served on active duty March 1973 to December
1974.
This matter comes to the Board of Veterans' Appeals (Board)
from an April 2006 rating decision by which the RO denied
entitlement to the benefits sought herein.
In connection with this appeal, the Veteran requested a
personal hearing before a Veterans Law Judge in Washington,
D.C. A hearing was scheduled to take place in March 2009.
The Veteran did not appear for the hearing and asked that it
be postponed. In February 2010, he indicated that he no
longer wished to testify at a hearing. Accordingly, the
Board will proceed with consideration of the Veteran's claim
based on the evidence of record, as he has requested. See 38
C.F.R. § 20.704(e) (2009).
The Board observes that the Veteran initially claimed
entitlement to service connection for anxiety with
depression. A review of the record reflects that he may also
be claiming service connection for PTSD based on personal
assault. Claims of service connection for psychiatric
disorders must be interpreted liberally. See Clemons v.
Shinseki, 22 Vet. App.128 (2009) (a claimant without medical
expertise cannot be expected to precisely delineate the
diagnosis of his mental illness; he filed a claim for the
affliction his mental condition, whatever it is, causes him).
As such, the Board has expanded the issue as expressed above.
The issue of entitlement to service connection for anxiety
with depression and/or PTSD based on personal assault is
addressed in the REMAND portion of the decision below and is
REMANDED to the RO via the Appeals Management Center (AMC),
in Washington, DC.
FINDINGS OF FACT
1. The Veteran is not shown to be suffering from a right
foot disability.
2. The Veteran is not shown to be suffering from a left foot
disability.
3. A low back disability is not shown to be related to the
Veteran's active duty service.
CONCLUSIONS OF LAW
1. A right foot disability was not incurred in or as a
result of active duty service. 38 U.S.C.A. §§ 1110, 5107
(West 2002); 38 C.F.R. §§ 3.102, 3.303 (2009).
2. A left foot disability was not incurred in or as a result
of active duty service. 38 U.S.C.A. §§ 1110, 5107 (West
2002); 38 C.F.R. §§ 3.102, 3.303 (2009).
3. A low back disability was not incurred in or as a result
of active duty service. 38 U.S.C.A. §§ 1110, 5107 (West
2002); 38 C.F.R. §§ 3.102, 3.303 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Service Connection
Legal criteria
Service connection will be granted if it is shown that the
veteran suffers from disability resulting from an injury
suffered or disease contracted in line of duty, or for
aggravation of a preexisting injury suffered or disease
contracted in line of duty, in the active military, naval, or
air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.
That an injury occurred in service alone is not enough; there
must be chronic disability resulting from that injury. If
there is no showing of a resulting chronic condition during
service, then a showing of continuity of symptomatology after
service is required to support a finding of chronicity.
38 C.F.R. § 3.303(b).
Service connection may also be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
A claim of service connection must be accompanied by medical
evidence establishing that the claimant currently has the
claimed disability. Absent proof of a present disability,
there can be no valid claim. See, e.g., Gilpin v. West, 155
F.3d 1353 (Fed. Cir. 1998) (38 U.S.C. § 1110 requires current
symptomatology at the time the claim is filed in order for a
veteran to be entitled to compensation); Degmetich v. Brown,
104 F.3d 1328 (Fed. Cir. 1997) (38 U.S.C. § 1131 requires the
existence of a present disability for VA compensation
purposes).
After the evidence has been assembled, it is the Board's
responsibility to evaluate the entire record. 38 U.S.C.A. §
7104(a) (West 2002). When there is an approximate balance of
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant. 38
U.S.C.A. § 5107; 38 C.F.R. § 3.102 (reasonable doubt to be
resolved in veteran's favor). In Gilbert v. Derwinski, 1
Vet. App. 49, 53 (1990), the Court stated that "a veteran
need only demonstrate that there is an 'approximate balance
of positive and negative evidence' in order to prevail." To
deny a claim on its merits, the preponderance of the evidence
must be against the claim. See Alemany v. Brown, 9 Vet. App.
518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.
Right foot
During service in January 1974, the Veteran complained of
bilateral foot pain. A callous was treated, and the Veteran
was instructed on proper foot hygiene.
In March 1974, the Veteran reported a laceration on the right
foot. There was also a plantar wart on the ball of the right
foot. The wound was cleaned and dressed. The plantar wart
was trimmed and dressed.
In July 1974, the Veteran complained of bilateral foot pain.
His boots were too narrow for his feet, causing the toes to
press against each other. Larger boots were recommended.
The Veteran was told to wear tennis shoes for a week.
On separation from service, no disability of the right foot
was noted, and the post-service medical evidence is silent as
to the right foot.
The record does not show that the Veteran sought any medical
treatment for the right foot since 1974. The record contains
no information that would lead the Board to suspect a present
disability of the right foot. A present disability is a
prerequisite to the granting of service connection.
38 C.F.R. § 3.303; Gilpin, supra. Because no disability of
the right foot is shown, service connection for a right foot
disability is denied.
The Board notes that the Veteran is competent to provide
evidence regarding the presence of a foot disability. See
Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see
also Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay
testimony is competent to establish the presence of
observable symptomatology). The Board, however, does not
credit his assertions in this regard. The Veteran has
received extensive medical treatment for a variety of
conditions to include heroin addiction. Presumably, he would
have mentioned a disability of the right foot during
treatment had it been present. The Board reminds the Veteran
that VA decision makers have discretion to accept or reject
pieces of evidence provided that sufficient reasons and bases
are set forth explaining such actions. Hayes v. Brown, 5
Vet. App. 60, 69- 70 (1993), citing Wood v. Derwinski, 1 Vet.
App. 190, 192-93 (1992); see also Timberlake v. Gober, 14
Vet. App. 122 (2000) (the law requires only that the Board
address its reasons for rejecting evidence favorable to the
veteran).
The Board has considered the provisions of 38 U.S.C.A.
§ 5107(b), but there is not such a state of approximate
balance of the positive evidence with the negative evidence
to otherwise warrant a favorable decision.
Left foot
During service in January 1974, the Veteran complained of
bilateral foot pain. A callous was treated, and the Veteran
was instructed on proper foot hygiene. In July 1974, the
Veteran complained of bilateral foot pain. His boots were
too narrow for his feet, causing the toes to press against
each other. Larger boots were recommended. The Veteran was
told to wear tennis shoes for a week. In September 1974, the
Veteran sought treatment for a left foot blister. The area
was cleaned and dressed. On separation, no disability of the
left foot was noted.
The record does not show that the Veteran sought any medical
treatment for the left foot since 1974. The record contains
no information that would lead the Board to suspect a present
disability of the left foot. A present disability is a
prerequisite to the granting of service connection.
38 C.F.R. § 3.303; Gilpin, supra. Because no disability of
the left foot is shown, service connection for a left foot
disability is denied.
The Veteran is competent to provide evidence regarding the
presence of a left foot disability. Jandreau, supra; Barr,
supra. The Board, however, does not credit his assertions in
this regard. The Veteran has received extensive medical
treatment for a variety of conditions to include heroin
addiction. Presumably, he would have mentioned a disability
of the left foot during treatment had it been present.
Hayes, supra; Timberlake, supra.
The Board has considered the provisions of 38 U.S.C.A.
§ 5107(b), but there is not such a state of approximate
balance of the positive evidence with the negative evidence
to otherwise warrant a favorable decision.
Low back
During service in October 1974, the Veteran sustained a low
back injury while wrestling. The impression was rule out
back sprain. Ultimately, muscle strain was diagnosed. There
is no further mention of the back in the service treatment
records.
The Veteran was involved in a motor vehicle accident in 1976,
two years after leaving service.
On VA orthopedic examination in 2006, the Veteran stated that
he had low back problems since service. After examining the
Veteran and ordering radiologic studies, the examiner
diagnosed degenerative disc disease of the lumbar spine with
chronic back pain and opined that it was not likely due to
the incident of low back muscle strain in service. The
examiner explained that no chronic low back condition was
established prior to discharge and that the Veteran's current
low back disability had its onset following the post-service
motor vehicle accident.
There are no medical opinions of record contradicting the VA
examiner's statement. Thus, the record contains no competent
evidence of a nexus between a current low back disability and
the Veteran's service. As such, service connection for the
Veteran's low back disability is denied. 38 C.F.R. § 3.303.
The Veteran is certainly competent to provide evidence
regarding low back pain that has been present since service,
and the Board finds no reason to doubt his assertions. See
Jandreau, supra; Barr, supra. Pain alone, without an
underlying diagnosis, however, is not a disability for which
service connection can be granted. See Sanchez- Benitez v.
Principi, 259 F.3d 1356 (Fed. Cir. 2001) (symptoms alone,
without a finding of an underlying disorder, cannot be
service- connected). The Veteran's currently shown low back
disability, namely degenerative disc disease, is not related
to service.
With respect to the VA examination provided, the Board finds
that it is adequate. The opinion was provided by a qualified
medical professional and was predicated on a full reading of
all available records. The examiner also provided a detailed
rationale for the opinion rendered. Barr, 21 Vet. App. at
312; see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295
(2008).
In conclusion, this is not a case where the evidence is in
relative equipoise; rather, the preponderance of the
competent medical evidence of record reflects that the
Veteran's low back disability is unrelated to service. As
such, the Veteran cannot prevail. 38 U.S.C.A. § 5107;
38 C.F.R. § 3.102; Gilbert, supra; Alemany, supra.
Veterans Claims Assistance Act of 2000 (VCAA)
As provided for by VCAA, VA has a duty to notify and assist
claimants in substantiating a claim for VA benefits.
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002
& Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and
3.326(a) (2009).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002). Proper notice from VA must inform the claimant
of any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; and (3) that the claimant is expected to provide in
accordance with 38 C.F.R. § 3.159(b)(1). This notice must be
provided prior to an initial unfavorable decision on a claim
by the agency of original jurisdiction (AOJ), in this case
the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir.
2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).
In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United
States Court of Appeals for Veterans Claims (Court) held
that, upon receipt of an application for a service-connection
claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require
VA to review the information and the evidence presented with
the claim and to provide the claimant with notice of what
information and evidence not previously provided, if any,
will assist in substantiating, or is necessary to
substantiate, each of the five elements of the claim,
including notice of what is required to establish service
connection and that a disability rating and an effective date
for the award of benefits will be assigned if service
connection is awarded. In this case, notice consistent with
the Court's holding in Dingess was provided in March 2006.
The VCAA duty to notify was satisfied by way of a letter sent
to the Veteran in January 2006, which fully addressed all
three notice elements and was sent prior to the initial AOJ
decision in this matter. The letter informed the Veteran of
what evidence was required to substantiate the claims and of
the Veteran's and VA's respective duties for obtaining
evidence.
VA has a duty to assist the Veteran in the development of the
claim. This duty includes assisting the Veteran in the
procurement of service medical records and pertinent
treatment records and providing an examination when
necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
In determining whether the duty to assist requires that a VA
medical examination be provided or medical opinion obtained
with respect to a veteran's claim for benefits, there are
four factors for consideration. These four factors are:
(1) whether there is competent evidence of a current
disability or persistent or recurrent symptoms of a
disability; (2) whether there is evidence establishing that
an event, injury, or disease occurred in service, or evidence
establishing certain diseases manifesting during an
applicable presumption period; (3) whether there is an
indication that the disability or symptoms may be associated
with the veteran's service or with another service-connected
disability; and (4) whether there otherwise is sufficient
competent medical evidence of record to make a decision on
the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4).
With respect to the third factor above, the Court has stated
that this element establishes a low threshold and requires
only that the evidence "indicates" that there "may" be a
nexus between the current disability or symptoms and the
veteran's service. The types of evidence that "indicate"
that a current disability "may be associated" with military
service include, but are not limited to, medical evidence
that suggests a nexus but is too equivocal or lacking in
specificity to support a decision on the merits, or credible
evidence of continuity of symptomatology such as pain or
other symptoms capable of lay observation. McLendon v.
Nicholson, 20 Vet. App. 79 (2006).
In this case, no examination was provided regarding the
claims of entitlement to service connection for disabilities
of the feet. No examination is needed regarding these issues
because there is no showing of a disability of either the
right or left foot. Id.; 38 U.S.C.A. § 5103a(d); 38 C.F.R.
§ 3.l159.
The Board finds that all necessary development has been
accomplished, and therefore appellate review may proceed
without prejudice to the Veteran. See Bernard v. Brown, 4
Vet. App. 384 (1993). The RO has obtained the service
treatment records and all available VA clinical records. The
record contains private medical evidence as well as records
from the Social Security Administration. The Veteran was
afforded a VA medical examination in connection with his
claim of service connection for a low back disability.
Significantly, neither the Veteran nor his representative has
identified, and the record does not otherwise indicate, any
additional existing evidence that is necessary for a fair
adjudication of the claim that has not been obtained. Hence,
no further notice or assistance to the Veteran is required to
fulfill VA's duty to assist the Veteran in the development of
the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd
281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15
Vet. App. 143 (2001); see also Quartuccio v. Principi, 16
Vet. App. 183 (2002).
ORDER
Service connection for a right foot disability is denied.
Service connection for a left foot disability is denied.
Service connection for a low back disability is denied.
REMAND
A preliminary review of the record reveals that this case
must be remanded to the RO for further development before the
Board may proceed in evaluating the Veteran's claim of
entitlement to service connection for anxiety with depression
and/or PTSD.
The Board notes that the Veteran's claim of entitlement to
service connection for an acquired psychiatric disorder to
include PTSD is based, at least in part, on stressors
involving personal assault. Specifically, he has asserted
being threatened with death by fellow Marines. There are
special development procedures that pertain to the processing
of claims of entitlement to service connection for PTSD based
on personal assault. VA has special evidentiary development
procedures, including the interpretation of behavioral
changes by a clinician and interpretation in relation to a
medical diagnosis. Patton v. West, 12 Vet. App. 272 (1999)
(citing VA Adjudication Procedural Manual M21-1, Part III,
paragraph 5.14(c)).
In this case, VA failed to comply with the specialized notice
requirements of 38 C.F.R. § 3.304(f)(3), which provides that
when a PTSD claim is based on in-service personal assault VA
must advise the claimant of alternative sources of evidence
for proving the occurrence of personal assault before denying
the claim. The Board notes that under 38 C.F.R. §
3.304(f)(3) if a PTSD claim is based on in-service personal
assault, evidence from sources other than the veteran's
service records may corroborate the veteran's account of the
stressor incident. Examples of such evidence include, but
are not limited to records from law enforcement authorities,
rape crisis centers, mental health counseling centers,
hospitals, or physicians; tests for sexually transmitted
diseases; and statements from family members, roommates,
fellow service members, or clergy. 38 C.F.R. § 3.304(f)(3).
Evidence of behavior changes following the claimed assault is
one type of relevant evidence that may be found in the
sources. Examples of behavior changes that may constitute
credible evidence of a stressor include, but are not limited
to request for transfer to another military duty assignment;
deterioration in work performance; substance abuse; episodes
of depression, panic attacks, or anxiety without an
identifiable cause; or unexplained economic or social
behavioral changes. Id. VA will not deny a PTSD claim that
is based on in-service personal assault without first
advising the claimant that evidence from sources other than
the veteran's service records or evidence of behavioral
changes may constitute credible supporting evidence of the
stressor and allowing him the opportunity to furnish this
type of evidence or advise VA of potential sources of such
evidence. Id. On remand, the RO should issue a notice
letter to the Veteran explaining the evidence necessary to
corroborate the alleged stressors during service to support
his claim for PTSD due to personal assault pursuant to 38
C.F.R. § 3.304(f).
The record contains the Veteran's service treatment records
but not his service personnel records. These must be
associated with the claims file.
In the event that any stressor is verified pursuant to the
notice letter sent to the Veteran, a VA psychiatric
examination should be conducted as directed below.
Accordingly, the case is REMANDED to the RO via the AMC for
the following action:
1. Send the Veteran an appropriate
stressor development letter with respect
to his claimed in-service personal assault
or assaults. The Veteran should be
notified that in-service personal assault
may be corroborated by evidence from
sources other than the service records, as
defined in 38 C.F.R. § 3.304(f)(3). All
specific examples of alternative sources
of evidence listed in 38 C.F.R. §
3.304(f)(3) must be included in the
notification to the Veteran. The Veteran
should be requested to provide further
detail concerning the claimed incident(s)
to allow corroboration of the claimed
incident(s). In addition, the RO should
specifically request the Veteran to
provide lay statements from anyone he may
have told about the incidents around the
time the alleged stressors occurred.
2. Obtain the Veteran's service personnel
records.
3. Make reasonable efforts to verify any
stressors identified by the Veteran
pursuant to the notice letter requested
herein.
4. Thereafter, if the claims file
contains evidence in support of the
Veteran's claimed in-service stressor(s),
then the RO should provide the Veteran
with a VA examination to determine the
nature and etiology of any psychiatric
disorder that may be present. The claims
file, including a copy of this remand,
must be made available to the examiner for
review, and the examiner should indicate
that the claims folder was reviewed in
connection with the examination. All
indicated evaluations, studies, and tests
deemed necessary by the examiner should be
accomplished. The he examiner is
requested to review all pertinent records
associated with the claims file and offer
an opinion as to whether the Veteran's
PTSD or other diagnosed psychiatric
disorder is at least as likely as not
(i.e., a fifty percent or greater
probability) related to a claimed in-
service stressor. The examiner should
provide a complete rationale for all
conclusions reached.
5. Upon completion of the foregoing, the
RO should readjudicate the Veteran's claim
of entitlement to service connection for
an acquired psychiatric disorder to
include PTSD, based on a review of the
entire evidentiary record. If the
benefits sought on appeal remains denied,
the RO should provide the Veteran and his
representative with a supplemental
statement of the case and the opportunity
to respond thereto. Thereafter, subject
to current appellate procedure, the case
should be returned to the Board for
further consideration, if in order.
The Veteran has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by
the Court for additional development or other appropriate
action must be handled in an expeditious manner. See 38
U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
____________________________________________
M.G. MAZZUCCHELLI
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs